Supreme Court of Utah.

64 Utah 592 (Utah 1925)

MCGARRY V. IND. COM

MCGARRY ET AL. V. INDUSTRIAL COMMISSION OF UTAH ET AL.

NO. 4163.
SUPREME COURT OF UTAH.

DECIDED JANUARY 21, 1925.

1. MASTER AND SERVANT INDUSTRIAL COMMISSION CANNOT TAKE TESTIMONY
OUTSIDE STATE OVER OBJECTIONS. Industrial Commission cannot hear evidence in another
state over employer's objection, in view of Comp. Laws 1917, 3081, 7163-7177. 2. MASTER
AND SERVANT JUDGMENT SETTING ASIDE AWARD DOES NOT AFFECT
COMMISSION'S JURISDICTION TO REOPEN CASE. Although Comp. Laws 1917, 3148, as
amended by Laws 1919, c. 63, 1, requires Supreme Court either to affirm or set aside award of
Industrial Commission, judgment setting aside award does not prohibit commission from
reopening case, nor affect its jurisdiction except as limited by Supreme Court's decision. 1 3.
MASTER AND SERVANT INFANT "DEPENDENT" OF FATHER ABANDONING IT, THOUGH
NOT RECEIVING OR PROMISED SUPPORT. Mere infant, incapable of supporting himself and
not competent to claim or waive legal right is actual dependent of father abandoning him within
Industrial Act, though he has not received or had promise of support. 2 *593593 4. MASTER AND
SERVANT CHILD SUPPORTED BY MOTHER SUSTAINED LOSS IN FATHER'S DEATH IN
AMOUNT DEPENDENT ON MOTHER'S ABILITY TO CONTRIBUTE. Child of divorced parents,
in custody of mother, to the extent of mother's inability to support it, sustained loss in death of
father, although divorce decree imposed upon mother the duty of maintenance.

1.
Salt Lake City v. Industrial Commission, 61 Utah, 514, 215 P. 1047, distinguished.
2.
McGarry v. Industrial Commission, 63 Utah, 81, 222 P. 592, cited; Utah Apex Min.
Co. v.Industrial Commission, 64 Utah, ___, 228 P. 1078, distinguished.

PROCEEDING BY W.C. MCGARRY AND OTHERS TO REVIEW AN ORDER

OF THE INDUSTRIAL COMMISSION OF UTAH, AWARDING

COMPENSATION TO JOHN CALVIN BRADLEY, FOR THE DEATH OF

DELOS BRADLEY, EMPLOYEE.
AWARD ANNULLED AND SET ASIDE.
Booth, Lee, Badger, Rich Rich, of Salt Lake City, for plaintiffs.
Harvey H. Cluff, Atty. Gen., and J. Robert Robinson, Asst. Atty. Gen., for defendants.

THURMAN, J.
Plaintiffs seek by this proceeding to review an order of the Utah Industrial Commission,
defendant herein, awarding compensation to John Calvin Bradley, a minor. Compensation was
awarded to the minor as a dependent of his father, Delos Bradley, who died as a result of an
accidental injury in the course of his employment at Park City, Utah, October 21, 1922. The
plaintiff, Kopp McGarry Company was the employer of deceased at the time of his death and
plaintiff United States Fidelity Guaranty Company carried the insurance. There is no dispute as to
the jurisdictional facts above stated.
This is the second time this case has been before the court. The decision rendered upon the
former hearing is reported
See (1) Workmens' Compensation Acts, p. 115 (1926 Anno); (2) Workmens' Compensation Acts,
p. 125; (3) Workmens' Compensation Acts, p. 57; (4) Workmens' Compensation Acts, p. 62
(1926 Anno). *594594 in 63 Utah, 81, 222 P. 592, to which reference is made for a detailed
statement of the case as it was then presented to the court. For convenience of the reader, we
briefly summarize certain material matters reported in the decision necessary to be understood in
this connection.
Alice Baker Bradley, the mother of the minor and his duly appointed guardian, and Delos Bradley,
the deceased, intermarried at Blackfoot, Idaho, July 3, 1914. John Calvin Bradley, sole issue of
said marriage, was born in June, 1915. The deceased supported his wife and child for a period of
about six months, after which he furnished no support whatever. In November, 1919, upon
application of the wife, the Idaho court granted her a divorce and the custody and maintenance
of the child. About that time Delos Bradley, left Idaho for parts unknown to his wife and assumed
the name of "Jack Wilson," by which name he was known to his employer. His whereabouts from
the time he left Idaho was unknown to his wife until she heard of his death. Shortly afterwards, as
guardian, she applied to the defendant Commission for compensation under the Utah Industrial
Act on behalf of her child. The Commission found the child was wholly dependent, and awarded
compensation accordingly. Upon reviewing the case this court came to the conclusion that as the
facts were insufficient to justify an award for total dependency, the Commission must have made
the award upon the theory that dependency was conclusively presumed, as provided in Comp.
Laws Utah 1917, 3140, par. 5, subd. a, as amended in Sess. Laws 1919, at page 164.
Consequently, the court held the award could not be sustained and nullified and set it aside. The
court, however, in its opinion, suggested that further evidence might establish a dependency
under the last provision of the section referred to which reads:

"In all other cases, the question of dependency, in whole or in part, shall be determined in
accordance with the facts in each particular case existing at the time of the injury."
As the opinion states at some length the reason for the suggestion made by the court, further
review of it is unneecssary in this connection. *595595
After the decision was handed down, the Commission, by resolution reopened the case for the
taking of further evidence and gave the plaintiffs herein notice thereof. Plaintiffs entered
seasonable objection to the jurisdiction of the Commission in view of the decision of this court,
but the objection was overruled, after which the Commission proceeded to hear the evidence in
the state of Idaho, to which proceeding plaintiffs also objected. The evidence so taken, among
other things, tended to show that the minor was and had been in more or less destitute
circumstances; that its mother had been unable to support herself and the child, and that she
had been compelled to obtain substantial assistance from the county for the child's support.
Upon this evidence, which was not contradicted, together with the evidence taken at the former
hearing, the Commission again found that the minor was wholly dependent and awarded
compensation accordingly. An application for rehearing was denied and the case is before us
again for review.
Plaintiffs present the following issues to be determined:
"1. The Industrial Commission was without jurisdiction to reopen the case and grant a rehearing
or a hearing de novo, to take further testimony, after its original award had been set aside and
annulled by the Supreme Court.
"2. The Industrial Commission had no jurisdiction or right to hold a hearing and take testimony
beyond the territorial boundaries of the state of Utah and therefore all proceedings had at
Blackfoot, Idaho, over the objection of plaintiffs, were all void.
"3. It is not shown from the record that at the time of the death of the deceased the minor child
was wholly dependent upon the deceased for its support and maintenance. Plaintiffs contended
that it affirmatively appears from the evidence and the entire record, that at the time of the death
of the deceased the minor child was neither wholly nor partially dependent upon the deceased
for its support and maintenance within the meaning of the Workmen's Compensation Act, and
that there is not sufficient evidence to support the award of the Commission, independently of the
irregularity of the proceedings in the state of Idaho."
For convenience we shall first consider the second objection, as it can be disposed of without
extended discussion. The Commission had no power to hear the evidence in Idaho against
plaintiffs' objection. Comp. Laws Utah 1917, *596596 3081, provides how evidence may be
taken in a1 for-foreign jurisdiction in cases arising under the Industrial Act. That section reads:
"The Commission or any party may in any investigation cause depositions of witnesses residing
within or without the state to be taken as in civil actions."
Comp. Laws Utah, 1917, 7163 to 7177, inclusive, prescribes the method in civil actions and is
exclusive as far as the authority of the Commission is concerned. The taking of testimony in the
state of Idaho, in the manner complained of, was beyond the jurisdiction of the Commission, and
there being no other evidence sufficient to sustain the award, it follows that the award should be
annulled and set aside. It is necessary, however, to determine the other questions presented.

The first objection in the order above quoted proceeds upon the theory that whenever an award
of the Commission is annulled by this court on review, the jurisdiction of the Commission for all
purposes is exhausted. The statute (Comp. Laws Utah 1917, 3148, as amended in Laws Utah
1919, at pages 164 and 165), in cases of review, provides that upon the hearing by the court "the
court shall enter judgment either affirming or setting aside the award."
The statute should be given a reasonable interpretation. If the interpretation of plaintiffs is
correct, it might lead to absurd, and, oftentimes, lamentable results. Let us take the instant case,
for example, and eliminate every objection made by plaintiffs except the one we have 2 just
decided, in which we have held the award should be annulled and set aside because the
Commission was without authority to hear the evidence in Idaho. That being the only objection,
the result would be the Commission would be powerless to hear further evidence even within the
state of Utah, in which it has undoubted jurisdiction. It might be a case of unquestioned
dependency and extreme hardship, but justice would fail because the Commission made an
honest mistake as to the extent of its jurisdiction. It is hardly to be presumed that such an
interpretation of the statute fairly reflects *597597 the intention of the Legislature. It is more
probable that the Legislature contemplated that if the Commission, by mistake in a given case,
should exceed its jurisdiction and its award be annulled on that account it should not be ousted of
its jurisdiction altogether, but be permitted to proceed in the determination of the rights of the
parties, observing, however, any limitations imposed by the court which annulled the award.
There is nothing whatever in the Utah Industrial Act from which it can be logically inferred that the
annulment of an award by the Supreme Court for specific reasons set forth in its opinion ousts
the Commission of its jurisdiction of the case for purposes otherwise just and lawful. We are
therefore not prevented by anything found in the statute from giving it such an interpretation as
will avoid results which the Legislature evidently could not have intended.
It is possible that plaintiffs may feel that the example we have given is unfair because it involves
only a technical error of the Commission in which the merits of the case were not involved. Let us
suppose a case in which the merits are involved and in which the Commission finds that the
applicant, under the evidence, is not entitled to compensation. The applicant brings the case
before this court for review. The court finds as matter of law, that all the evidence is in favor of the
applicant and that he is justly entitled to compensation. For that reason the court annuls the
award and sets it aside, which is all it can do under the law. What then becomes of the case? If
the Commission's jurisdiction of the case is exhausted so that nothing further can be done in
favor of the applicant, the decision of this court, favorable to the applicant, would itself be a nullity
as far as practical results are concerned. Such an interpretation of the statute, in our opinion, is
not only wrong, but a serious reflection upon the intelligence of the Legislature which enacted the
law.
The interpretation contended for by plaintiff does not insure even-handed justice. It always inures
to the benefit of the employer and his insurer and against the applicant. If the Commission
denies compensation, that is all the employer and insurer can ask. If the Commission allows
compensation *598598 and this court sets the award aside, that ends the case against the
applicant; and, finally, if the Commission denies compensation and this court sets the award
aside because compensation should have been allowed, the applicant gets nothing. We are firm
in our conviction that the Legislature of this state intended no such unreasonable and arbitrary
discrimination against the poor unfortunates whom the law was manifestly intended to benefit
rather than to place at a disadvantage.

Plaintiffs invoke and rely upon the doctrine of res adjudicata and cite the following
cases.Centralia Coal Co. v. Ind. Comm. et al., 297 Ill. 451, 130 N.E. 727; Harris v. Castile Mining
Co., 222 Mich. 709, 193 N.W. 855; Estate of P.D. Beckwith, Inc., et al. v. Spooner, 183 Mich.
323, 149 N.W. 971, Ann. Cas. 1916E, 886; Choctaw Portland Cement Co. v. Lamb, 79 Okla.
109, 189 P. 750.
In the Centralia Coal Co. Case, supra, the second headnote states the doctrine enunciated in
that case:
"Where Industrial Commission's decision refusing injured employee compensation became final
on failure to bring it up for review by the court, the Commission had no jurisdiction, by
subsequent hearing, to review and set aside the decision; the previous decision being res
judicata."
The principle enunciated in the above quotation was recognized by this court in Salt Lake
City v.Ind. Comm., 61 Utah, 514, 215 P. 1047. It was there held that the Commission had no
jurisdiction to entertain a new petition for compensation after denial thereof on a former petition,
and where the applicant had not applied to this court to review the award, as provided by law. We
have no fault to find with the Centralia Coal Co. Case, but fail to see what application it has to the
question presented here. Nor do the other cases cited shed any light upon the question
submitted for our determination in view of our interpretation of the law, which limits the power of
this court on review to either affirm or set aside an award.
We are forced to the conclusion that in order to give the statute any practical and beneficial
effect, a judgment by this court on review, setting aside an award does not affect
the *599599jurisdiction of the Commission except as limited by the decision of the court. Such
interpretation of the statute is clearly necessary in order to reflect the evident intention of the
Legislature. It may be that such interpretation will tend in some instances to prolong litigation, but
it is far more just to prolong litigation in a case now and then than it is to violate the manifest spirit
and purpose of the law.
This brings us to a consideration of the third and last contention made by the plaintiff. This
contention goes to the merits of the case. It is strenuously contended by plaintiffs that brushing
aside the irregularities complained of in the preceding objections there is, nevertheless, no
dependency established either wholly or in part under the Industrial Act. This feature of the case
was given consideration in our former opinion ( 63 Utah, 81, 222 P. 592) to which reference has
been made, and it would be an unnecessary burden involving useless expense to the state to
again state our views at any considerable length. The gist of plaintiffs' contention seems, to be
that there is no dependency, wholly, or in part, because it is not shown in the evidence that the
deceased furnished or promised any support to the minor down to within a recent date. In our
former opinion we cited many authorities strongly tending to hold that the furnishing of support
was not a necessary factor in determining actual dependency, but that it is a competent fact and
in most cases is generally made to appear. For the convenience of the reader we cite without
comment the cases supporting our conclusions in the opinion referred to. Merrill v. Penasco
Lumber Co., 27 N.M. 632, 204 P. 72; 1 Honnold on Workmen's Compensation,
82; Young v.Niddrie Benhar Coal Co., Ltd., 6 B.W.C.C. 774; also see 1 B.W.C.C. 332.
As stated in the opinion:

"We have found no American cases as nearly analogous to the instant case as are the English
cases above cited. Neither have we found any American case which contravenes the doctrine of
the English cases."
Our decision upon review of the first award was primarily based upon the fact that there was
nothing to show that the *600600 applicant was in needy circumstances or that his mother who
had obtained a divorce from her husband, was not abundantly able to support herself and the
child. In other words, there was nothing to show that the child was actually dependent upon any
one, unless it might be his mother, for support and maintenance. It is now made to appear that
the child had no means of its own; that its mother was unable to support it entirely and she was
compelled to obtain assistance from the county to the extent of many hundreds of dollars. The
child was only 3 or 4 years of age at the most when its father entirely abandoned it and its
mother. Human experience teaches us that a child of that age, or even of the age it is now, is
practically helpless, and lexicographers of the English language generally give to the word
"dependent" a definition which covers and includes a helpless infant. The Industrial Act of Utah
does not state the circumstances and conditions under which an actual dependency may be
established. It does not make actual dependency depend upon some support furnished the
applicant by deceased down to a recent date, nor has any respectable authority had the temerity
to so interpret industrial acts unless the act itself prescribes such limitation, as in most of the
states of the Union. See Hill-Wilkin, Workmen's Compensation Statute Law, 1923.
We are inclined to the views intimated in our former opinion, that where a mere infant, incapable
of supporting itself and not competent either to claim or waive a right under the law, is
abandoned by its father, whose duty under the law during his life was to support the child, such
child, upon his father's death, within the purview of the Utah Industrial Act, becomes an actual
dependent without regard to the question as 3 to whether he has received or had the promise of
support. Whether such child is wholly or partially dependent, of course, depends upon the facts
of the particular case.
This case is clearly distinguishable from the case of Utah Apex Min. Co. v. Ind. Comm., 64 Utah
___, 228 P. 1078. In that case the applicant wife was voluntarily living apart from her husband,
the deceased, at the time of his death. He had *601601 not contributed to her support for a period
of about 5 years next preceding the date of his death. During a portion of said time he was in the
state (Montana) where his wife lived, but during most of the time, especially the last 27 months of
the period, she did not know his whereabouts until she received a report of his death. She was in
needy circumstances the most of the time, but never applied to her husband for support or
sought to compel the same. In fact when upon the witness stand at the hearing before the
Commission, she was asked if her condition was such that had she known of her husband's
whereabouts would she have required that he support her, she answered, "No." The next
question was: "Were you in need of financial assistance?" She answered, "Yes, sir." She was
then asked: "Did you know that your husband was legally bound to support you?" She answered,
"Yes"; and later stated that the reason she would not have exacted support was because of the
treatment of the family. Dependency under the statute could not be presumed as matter of law
because they were not living together and the evidence was held by this court, on review,
insufficient to establish a dependency in fact. Consequently, the award made in her favor was set
aside. The applicant in that case was sui juris and presumably competent to claim and enforce
her legal rights. The court, in its opinion in that case, in commenting upon the effect of her
testimony, at page 1080 of the report, said:

"It seems to have been a clear case of voluntary living apart and complete acquiescence, not
only as relates to their separation, but also the husband's failure to furnish her means of
subsistence."
Mr. Justice Gideon, now Chief Justice, in a brief concurring opinion, tersely states his reasons for
concurring, which undoubtedly were the reasons in part of the entire court. At page 1081 he
says:
"I concur in the order annulling the award. I base such a concurrence on the mental attitude of
the widow of the deceased, as appears from her testimony. She testified that she did not receive
any support from the deceased; that she had made no effort to obtain support; would not have
exacted it if she had known his whereabouts; and did not expect the deceased to support
her."*602602
It is clearly deducible from the majority opinion also that if it had not been for the fact that
applicant was voluntarily living apart from her husband, together with her mental attitude as
stated in the concurring opinion, the award of the Commission would not have been annulled by
this court, notwithstanding she had neither received support nor promise of support from the
husband for a period of more than 5 years next preceding his death.
In that case the former opinion of the court in the instant case was referred to and relied on as
grounds for annulling the award, but the court, in its opinion, briefly distinguishes the cases in the
manner we have endeavored to distinguish them here. In the last case the general rule that there
should be same support or promise of support is elaborated to some extent and reference made
to authorities strongly supporting the rule. We frankly admit that the rule we invoke in the instant
case is an exception to the general rule, but it is because of the exceptional circumstances
attending the case. To hold that a mere infant, only 7 years of age when it makes its application,
is not a dependent because it did not take some steps to enforce its father's legal duty in his
lifetime or because its father did not contribute or promise to contribute to its support down to
within a recent date, where there is no positive law making such element an essential factor in
such a case, is well-nigh shocking to the judicial conscience. The fact that the mother of the child
may have had the opportunity to attempt the enforcement of the father's duty when she knew of
his whereabouts during the first 4 years of the child's life and failed to do so certainly should not
be assigned as a reason for annulling the award allowing the child compensation. Counsel for
plaintiff, in their able brief admit in effect that this is a case of unusual hardship, and vigorously
excoriate the father for his shameful neglect, for which they intimate he should have been
condemned and incarcerated as a common criminal. In other words, the conduct of the father
was such as to call for the bitterest anathemas of plaintiff's counsel, notwithstanding which they
strenuously insist the case should be determined *603603 under the general rule rather than be
made an exception thereto.
Before concluding this opinion there is a further question that should be given brief attention. It
appears from the evidence taken at the subsequent hearing before the Commission that
personal service was acquired upon the deceased Delos Bradley in the divorce proceeding, and
that the plaintiff, in her complaint in said cause, prayed for the custody and maintenance of the
child. Her prayer was granted and the decree of the court imposed upon her the duty of
maintaining the child. It appears that she discharged the obligation to the extent of her ability, but
was physically unable to fully comply with the decree and was compelled to call upon the county
for assistance. The county complied with her request and has made substantial contributions for

the child's support. It cannot be contended that such contributions by the county was a primary
duty. The primary duty rested upon the parents and to the extent that the mother was unable to
support the child, after providing 4 herself with adequate support, the child sustained a distinct
loss in the death of its father. The amount of the loss, being dependent upon the amount the
mother is able to contribute, is a matter within the jurisdiction of the Commission to determine in
accordance with the facts. The court is of opinion that this feature of the case should have been
given consideration by the Commission in determining the nature and extent of the dependency.
For the reason that the Commission exceeded its jurisdiction in taking and hearing the evidence
in the state of Idaho, the award is annulled and set aside.
GIDEON, C.J., and CHERRY, J., concur.

FRICK, J.
I concur both in the reasoning and conclusion of Mr. Justice THURMAN. In view of the
importance and far-reaching effect of the decision, however, I feel constrained to add a few
words in explanation of my concurrence.
Ordinarily, one who, under the Industrial Act, seeks to be *604604 compensated for the death of
another, must show that he was dependent upon the deceased at the time of the injury which
causes death, and that he by such death has been deprived of something which the deceased
had contributed to his support and maintenance during the life time of the deceased. The
purpose of the Industrial Act is to provide compensation of a material, that is, a monetary kind, as
distinguished from compensation for other losses. If, therefore, the deceased has contributed
nothing to the applicant during the lifetime of the deceased, the applicant has suffered no loss
and hence no compensation can or ought to be made. In the case of infants, however, or other
children who are "physically or mentally incapacitated," from earning wages, the general rule
above stated cannot and does not apply.
In my judgment all that an infant or other offspring, who is physically or mentally incapacitated
from earning wages, is required to prove is the relationship he sustains to the deceased, and that
he has no other means of support. Where such is the fact, the case, as pointed out by Mr. Justice
THURMAN, constitutes an exception to the general rule, and the dependent infant need not
prove that the parent actually contributed to his support at the time of the latter's death. Under
such circumstances in my judgment the legal duty of the parent and the actual and existing
necessities of the infant are sufficient to entitle the latter to compensation under the Industrial
Act.
Ordinarily therefore an infant of tender years, like the applicant in the instant case, can be
presumed to be wholly dependent upon the parent. For the reason, however, that the custody,
nurture, and control of the infant applicant in this case was awarded to the mother by a court of
competent jurisdiction, before the death of the father, that presumption cannot prevail. The
question of dependency, as pointed out by my associate, is therefore one of fact to be
determined by the Commission upon competent evidence being submitted to it.
The term of office of Hon. A.J. WEBER, who was Chief Justice, expired before disposition of this
cause.